[00:00:05] Speaker 00:
Good morning, Your Honor.

[00:00:06] Speaker 00:
It's Michael Drake for petitioner Walter Scott.

[00:00:09] Speaker 00:
I'll reserve three minutes for rebuttal if I may.

[00:00:11] Speaker 02:
All right.

[00:00:12] Speaker 00:
And I'll watch my time on that.

[00:00:14] Speaker 00:
Please.

[00:00:16] Speaker 00:
During the guilt phase deliberations at Walter Scott's capital trial, the jury asked whether they could change a verdict.

[00:00:25] Speaker 00:
The legal issue this presents here on federal habeas review under EDPA is could a fair-minded judge disagree that that question posed a critical stage under United States versus chronic.

[00:00:39] Speaker 00:
Probably a good place to start would be with this court's leading decision in this area, Muslad versus Lamarck.

[00:00:45] Speaker 00:
Why was the disagreement about the jury instruction there reasonable?

[00:00:50] Speaker 00:
It was reasonable because the jury instructions gave a correct answer to it, and all that was lost to counsel there was the opportunity to

[00:01:00] Speaker 00:
amplify or elaborate on the instructions that gave a correct answer.

[00:01:05] Speaker 00:
So fair-minded judges could disagree about whether the consequences in that situation are really- Right.

[00:01:12] Speaker 02:
We're in a review land, correct?

[00:01:14] Speaker 02:
Right.

[00:01:14] Speaker 02:
So you need to identify clearly established law.

[00:01:16] Speaker 00:
Right.

[00:01:17] Speaker 02:
And what would be your best case for that?

[00:01:19] Speaker 00:
Well, Musladen holds that Kronik is the clearly established federal law.

[00:01:25] Speaker 01:
But that's not a Supreme Court case, right?

[00:01:28] Speaker 01:
Kronik?

[00:01:28] Speaker 01:
No, Muslan.

[00:01:30] Speaker 00:
No, but Musladen is precedent for the fact that Kronik is the clearly established federal law, that it establishes a general standard.

[00:01:37] Speaker 01:
I mean, we can't.

[00:01:38] Speaker 01:
The clearly established law has to be something from the Supreme Court.

[00:01:42] Speaker 04:
I mean, I don't think we can run around— The circuit doesn't get to tell you what's clearly established.

[00:01:47] Speaker 04:
I mean, past precedent doesn't get to tell you what's clearly established.

[00:01:51] Speaker 04:
We have to decide that the Supreme Court clearly established the law.

[00:01:57] Speaker 00:
Well, the Ninth Circuit has already established that Kronik clearly established, right, that

[00:02:04] Speaker 00:
that the deprivation of counsel at a critical stage.

[00:02:07] Speaker 02:
Right, that gets you that far.

[00:02:08] Speaker 02:
It gets you as far as you can't deprive counsel at a critical stage of the proceeding.

[00:02:16] Speaker 02:
to where you want to go today, which is that this deficiency is actually a critical stage.

[00:02:22] Speaker 02:
So can you identify the law on that second question?

[00:02:24] Speaker 00:
Well, Moose Laden says that the chronic creates a general standard applicable to multiple situations.

[00:02:31] Speaker 00:
So the court, it's the same with Strickland or Brady.

[00:02:34] Speaker 00:
We don't need to wait for a case that has the same facts.

[00:02:39] Speaker 00:
It's a general standard that applies to multiple cases.

[00:02:41] Speaker 00:
So even a general standard.

[00:02:43] Speaker 00:
can be applied unreasonably.

[00:02:45] Speaker 00:
And that's what happened here.

[00:02:46] Speaker 00:
The standard under the Supreme Court's precedent is, there are multiple formulations, but the leading one seems to be, was the proceeding of a sort that held significant consequences for the accused?

[00:03:01] Speaker 00:
That's Bell v. Cohn.

[00:03:02] Speaker 00:
Muslat incites Bell v. Cohn.

[00:03:04] Speaker 00:
So that tells you what the general standard is.

[00:03:08] Speaker 00:
We can now apply that to the facts of this case and ask whether a fair-minded judge

[00:03:13] Speaker 04:
How do we know the facts of what you call the facts of this case?

[00:03:16] Speaker 04:
As I read the record and I scoured it and went up and down the chain, I see nothing that indicates that this piece of paper ever got to the judge or under the circumstances or that the judge ever, quote, denied it.

[00:03:34] Speaker 04:
To me, it was almost, well, what's the law on a judge who doesn't respond to a question if he even got it?

[00:03:43] Speaker 04:
Do you have any notion of what really happened?

[00:03:46] Speaker 04:
Because your client and you in the briefing say that he raised this in California 20 plus years ago when all of the people would have been available.

[00:03:59] Speaker 04:
That is presumably the counsel, the clerk, the judge, the jurors knew something about this piece of paper.

[00:04:07] Speaker 04:
And I can't find anything that says

[00:04:11] Speaker 04:
anything about how that piece of paper got there.

[00:04:16] Speaker 00:
Well, we know two things.

[00:04:16] Speaker 00:
Can you enlighten me?

[00:04:17] Speaker 00:
Yeah, I hope so, Your Honor.

[00:04:18] Speaker 00:
I'll try.

[00:04:19] Speaker 00:
All right.

[00:04:19] Speaker 00:
So I think we know two essential things.

[00:04:21] Speaker 00:
One is that the jury asked the question, propounded the question on a question form.

[00:04:26] Speaker 04:
Well, they wrote a piece of paper.

[00:04:28] Speaker 00:
Yes.

[00:04:28] Speaker 00:
And the question was filed in the court.

[00:04:32] Speaker 04:
Right, but not with anything that indicates when it happened.

[00:04:35] Speaker 00:
Well, that's our problem, Your Honor.

[00:04:36] Speaker 04:
All right.

[00:04:37] Speaker 00:
Something should have happened with the paper, right?

[00:04:40] Speaker 00:
The jury asked the court.

[00:04:42] Speaker 04:
Well, so are you saying,

[00:04:44] Speaker 04:
Are you saying that that's enough evidence that the judge got it that morning?

[00:04:49] Speaker 04:
Remember, the jury was brought in and read back a lot of stuff at, what, 12, 137.

[00:04:57] Speaker 04:
And they came in with a verdict at 245.

[00:05:00] Speaker 04:
We don't know if the piece of paper was in the judge's hand at lunch between 137 and 245.

[00:05:07] Speaker 04:
And curiously is that the handwritten note

[00:05:14] Speaker 04:
that says denied sort of starts with the Spanish reverse interrogatory mark, which looks like somebody who knows said, was this denied?

[00:05:27] Speaker 04:
Do you have any information on that?

[00:05:29] Speaker 00:
No information on that, Your Honor.

[00:05:32] Speaker 00:
So I wanted the same thing.

[00:05:35] Speaker 00:
It appears that the jury got.

[00:05:37] Speaker 00:
So the question was asked.

[00:05:39] Speaker 04:
The question was written down on a piece of paper.

[00:05:41] Speaker 00:
The question was filed in the court.

[00:05:43] Speaker 00:
At some time unknown.

[00:05:45] Speaker 00:
At some time during the day, but before the jury was polled, which is when the verdict is... Oh, we don't know that either.

[00:05:51] Speaker 00:
There's no way for the jury to have asked the... Written an inter... They could have written it and left it in the jury room.

[00:05:57] Speaker 00:
Well, but they propounded the question before it was... Right.

[00:06:01] Speaker 00:
Before... Yes.

[00:06:03] Speaker 00:
They asked the question.

[00:06:03] Speaker 04:
It was written on a piece of paper.

[00:06:05] Speaker 04:
Right.

[00:06:06] Speaker 04:
Right.

[00:06:07] Speaker 04:
So it was... We're looking at the judge's action, right?

[00:06:10] Speaker 04:
I mean, that is your claim.

[00:06:12] Speaker 04:
requires the judge to have made a constitutional violation of clearly established law, right?

[00:06:19] Speaker 00:
I'm not sure that it's consistent with a chronic error that this was an administrative error, that this never even got to the judges, got to the judge.

[00:06:29] Speaker 00:
The jury propounded the question.

[00:06:32] Speaker 00:
It was filed.

[00:06:34] Speaker 00:
I presume, if we presume the normal

[00:06:39] Speaker 00:
function of the court that the question was put before the judge, we do have this question of, well, how did it end up being filed with a notation saying denied or whatever?

[00:06:49] Speaker 00:
But our point is that nothing was done on it.

[00:06:53] Speaker 00:
And it's a critical question that had significant consequences for Mr. Scott.

[00:07:00] Speaker 00:
And then we have, right?

[00:07:02] Speaker 00:
the operative statutes, the California Penal Code 1138 that says if there's any request for jury information, there needs to be a proceeding in open court.

[00:07:11] Speaker 00:
And then California Penal Code 190.2, which says those need to be on the record.

[00:07:15] Speaker 00:
And so the upshot is that on this record, there's more than enough to conclude that the jury asked the question

[00:07:21] Speaker 00:
The instructions provided an incorrect answer.

[00:07:24] Speaker 02:
The jury was never given guidance, and the counsel were never advised about the- I know you wanted to save some time, but can you take a moment to address whether this was harmless error, assuming that we disagree with you, that there's clearly established law on the critical stage?

[00:07:39] Speaker 02:
Why doesn't the polling cure the problem?

[00:07:43] Speaker 00:
The polling doesn't cure the problem because it refers back to what it asked the jury, the judge,

[00:07:51] Speaker 00:
before pulling them said, you know, we're going to pull you and before we, you know, we're going to pull you and we're going to ask that you bring it to our attention.

[00:07:58] Speaker 00:
If you're, if the verdicts read, don't reflect your vote back in the jury room.

[00:08:03] Speaker 00:
So that just compounds the problem with, if anything, it would make jurors feel more locked in at that point.

[00:08:08] Speaker 02:
I don't know about that, because the court was very specific.

[00:08:11] Speaker 02:
Right before reading the verdict form, the judge says, I will ask you to listen carefully, because the verdict will be read essentially count by count.

[00:08:19] Speaker 02:
If this is not your individual verdict, please make a note of it, and then bring it to the attention of the court.

[00:08:26] Speaker 02:
It can't be clearer than that.

[00:08:27] Speaker 00:
I think, are you reading from the, where are you reading from, Your Honor, the RT or the ER?

[00:08:33] Speaker 02:
ER 215.

[00:08:42] Speaker 00:
Sorry, as I get to it, what I'll say is I believe.

[00:08:45] Speaker 02:
Well, maybe you can address it on your own.

[00:08:48] Speaker 00:
Yeah, I'll just say I believe.

[00:08:49] Speaker 00:
I'll find it.

[00:08:50] Speaker 00:
But I believe there's language in there where the judge says, or that it reflects your vote back in the jury room.

[00:08:56] Speaker 00:
Either way, there's this ambiguity about what the verdict is.

[00:09:00] Speaker 00:
The jury note reflects the notion that the verdict is what they agreed to before they signed the form, when in fact, under California law,

[00:09:09] Speaker 00:
The verdict is what is uttered in court.

[00:09:11] Speaker 00:
There's no way for the jurors to get from the instructions to the facts of California, the correct answer under California law.

[00:09:19] Speaker 02:
Take a look at ER 215.

[00:09:20] Speaker 00:
I will.

[00:09:21] Speaker 00:
Thank you, John.

[00:09:21] Speaker 00:
Thank you.

[00:09:27] Speaker 03:
Good morning.

[00:09:28] Speaker 03:
May it please the court, Deputy Attorney General David Wellman for the respondent, the warden, Martin Bitter.

[00:09:32] Speaker 03:
The District Court properly denied habeas relief to Petitioner for three reasons.

[00:09:37] Speaker 03:
First, Petitioner has not met the burden of proof to show facts firmly supporting his claim.

[00:09:43] Speaker 03:
Second, there's no Supreme Court authority establishing that jury deliberations, entering notes during jury deliberations is a critical stage under chronic.

[00:09:53] Speaker 03:
And then third, even if there's a denial of counsel outside of chronic, where it's not a critical stage,

[00:09:59] Speaker 03:
It's non-prejudicial because of the jury polling, which all the jurors said that these were their verdicts.

[00:10:05] Speaker 03:
They had no issue with it.

[00:10:07] Speaker 03:
Also, because we have the jury verdicts, and there's only one jury verdict where they crossed something out and changed it.

[00:10:13] Speaker 03:
That's Count 31, where the jury changed the true finding on the gun use enhancement to not true.

[00:10:20] Speaker 03:
And that adhered to Petitioner's Benefit.

[00:10:22] Speaker 03:
That's at ER-228.

[00:10:25] Speaker 03:
So for those three reasons,

[00:10:27] Speaker 03:
Petitioner is not entitled to relief, and the district court properly found that.

[00:10:33] Speaker 02:
What are you talking about?

[00:10:35] Speaker 02:
Because ER-228 is the jury note.

[00:10:44] Speaker 03:
225 I have as the jury note, and 228 as a jury verdict, Your Honor.

[00:10:52] Speaker 02:
All right.

[00:10:53] Speaker 03:
In the jury note, the foreman signs

[00:10:55] Speaker 03:
They ask, if there's a disagreement, can the verdict sheet be changed?

[00:11:00] Speaker 03:
They're asking a procedural question about what they do with a jury verdict that they've already signed and they want to change.

[00:11:07] Speaker 03:
On ER-228, we have the jury verdict for Count 31, where we have a jury verdict for the personal use enhancement that was changed, initialed with October 3, 1991, and TK, which are the jury form, is initial.

[00:11:24] Speaker 03:
So we know that that's what the jury was referring to.

[00:11:26] Speaker 04:
Just got the site wrong, because I've got the piece of paper in my hand.

[00:11:29] Speaker 04:
The questionable jury note is 228.

[00:11:33] Speaker 04:
So possibly your citation, we could find it.

[00:11:36] Speaker 02:
We're working off of a different bench book, apparently.

[00:11:40] Speaker 02:
But anyway, go on.

[00:11:41] Speaker 02:
I don't want to waste too much of your argument time in trying to find the right excerpt of record here.

[00:11:47] Speaker ?:
Find it.

[00:11:49] Speaker 03:
Well, it's unfortunate that we don't have the same sheets in front of us.

[00:11:54] Speaker 03:
I think the silent record does not support petitioner's claim.

[00:11:58] Speaker 03:
He's arguing that this court should assume the trial court acted improperly, but the burden's on petitioner to show facts entitling him to relief.

[00:12:06] Speaker 03:
It's been 33 years since the trial.

[00:12:08] Speaker 03:
The petitioner has not produced any declarations from trial counsel attesting to what happened, what they knew about this, whether they knew about the jury note at all.

[00:12:18] Speaker 03:
And then we have some circumstantial evidence about the procedures that this trial judge used.

[00:12:26] Speaker 03:
Primarily, and this is talked about in the briefs, right when the jury was sent out for deliberations, the trial judge talked to all the attorneys and said, I want you in the courtroom for any readback, for any questions.

[00:12:38] Speaker 02:
Right, no, I understand that.

[00:12:40] Speaker 02:
I mean, I served on the LA Superior Court.

[00:12:42] Speaker 02:
This is pretty standard to say, you know, counsel can stand in for each other, but everything's done in open court, on the record, and that this judge followed that pretty usual protocol.

[00:12:54] Speaker 02:
So in some ways, it's inconceivable that he didn't respond to the note had he seen it.

[00:13:01] Speaker 02:
But you would agree that your opposing counsel is correct that on this particular record, we don't have anything to make the inference that the court responded in any way, right?

[00:13:11] Speaker 02:
That's fair to say.

[00:13:12] Speaker 02:
It seemed like the court was careful.

[00:13:15] Speaker 02:
He gave the instruction.

[00:13:16] Speaker 02:
He did the polling.

[00:13:19] Speaker 02:
He clarified it at every step and had consulted with counsel for the other jury notes.

[00:13:24] Speaker 02:
But on this record, I don't know that we can reach the inference that you may be suggesting.

[00:13:31] Speaker 02:
were able to reach.

[00:13:33] Speaker 02:
Is that fair to say that we can't conclude that the judge acted in any way in response to this note?

[00:13:41] Speaker 03:
Your Honor, we don't have a record of the judge responding to the jury on this note.

[00:13:46] Speaker 03:
We have the word denied, which appears to be written on the jury note.

[00:13:50] Speaker 02:
Right.

[00:13:50] Speaker 02:
There's not enough.

[00:13:51] Speaker 02:
So that's my point.

[00:13:52] Speaker 02:
You would concede that there's not enough.

[00:13:54] Speaker 03:
Yes.

[00:13:55] Speaker 03:
And I think the word denied could have been on a

[00:13:58] Speaker 03:
slip of paper that was added afterwards, or it's simply not responsive to this question, which is a yes or no question.

[00:14:06] Speaker 03:
But even if he could make that record, I don't think he is entitled to really fund a chronic, because there's no Supreme Court authority saying that jury deliberations, responding to jury notes during jury deliberations is a critical stage.

[00:14:20] Speaker 03:
And in fact, there are a number of circuit court opinions where they've found jury notes, including

[00:14:27] Speaker 03:
not to be critical stages.

[00:14:29] Speaker 03:
This case follows that very closely.

[00:14:34] Speaker 03:
In Muzladen, they had a situation where the jury asked for a better definition of malice.

[00:14:42] Speaker 03:
Here, the jury wasn't asking for a definition of any legal term.

[00:14:47] Speaker 03:
They were simply asking whether they could cross out a term, something on the verdict, and submit a verdict that they all agreed upon.

[00:14:56] Speaker 03:
So it's a very different situation.

[00:14:58] Speaker 02:
And that seems pretty critical, much more critical than what happened in Muzladen, right?

[00:15:06] Speaker 03:
I would respectfully disagree, because in Muzladen, they were asking for a definition of a legal term.

[00:15:12] Speaker 03:
Here, the jury's not asking for the court to define a legal term.

[00:15:17] Speaker 03:
It's simply asking, can we cross out something?

[00:15:21] Speaker 03:
Can we submit a verdict that's been crossed out?

[00:15:24] Speaker 03:
It's more of a housekeeping matter than a... Can we change our mind?

[00:15:28] Speaker 02:
That's a housekeeping matter?

[00:15:34] Speaker 03:
Perhaps not changing the mind of jurors, but how they fill out the verdict form, which is what the question went to.

[00:15:42] Speaker 03:
There is a disagreement with the verdict.

[00:15:44] Speaker 03:
Can the verdict sheet be changed?

[00:15:47] Speaker 03:
That was their focus, whether they can follow that procedure.

[00:15:55] Speaker 04:
So could this have, in fact, been related to that change that you were just referring to on count 31?

[00:16:06] Speaker 03:
Well, Your Honor, as I look through the verdict forms, there's only one that was changed by the jurors, and it was initialed.

[00:16:12] Speaker 04:
Right.

[00:16:12] Speaker 04:
But in a sense, the question, in effect, they went ahead and did what they said could we do.

[00:16:21] Speaker 04:
That is, you say it was originally written out one way, and then it was crossed out and changed.

[00:16:26] Speaker 03:
Yes, and it's quite possible this note was submitted with the jury verdict forms on October 4th, which it's stamped, and the jury verdicts came in October 4th.

[00:16:36] Speaker 03:
And perhaps.

[00:16:37] Speaker 04:
I say we're speculating, but another one would be, here's what we did.

[00:16:41] Speaker 04:
Was it OK to do what we did?

[00:16:45] Speaker 04:
Which, of course, the judge took the changed form, right, according to what you've been telling us at page at the count 31.

[00:16:54] Speaker 03:
Yes, that's the verdict that we have on count 31.

[00:16:59] Speaker 03:
Yes.

[00:17:03] Speaker 03:
So for these reasons, I think even though we have a record which is not as complete as we'd like, no evidentiary hearing is necessary.

[00:17:13] Speaker 03:
It's been 33 years.

[00:17:15] Speaker 03:
The evidence hasn't been produced in the form of declarations.

[00:17:19] Speaker 03:
And the change, the only change that was made was the petitioner's benefit.

[00:17:32] Speaker 03:
So for those three reasons, I would argue that Petitioner is not entitled to relief.

[00:17:36] Speaker 03:
One, he hasn't made his record on habeas corpus.

[00:17:40] Speaker 03:
Two, he hasn't shown relief under AEDPA because Kronach is the leading Supreme Court authority, and there hasn't been any other Supreme Court authority on this particular issue.

[00:17:55] Speaker 03:
And three,

[00:17:56] Speaker 03:
Even if there was a non-critical stage error, it was non-prejudicial because of the jury polling and because of the jury verdict on Count 31 that I've discussed.

[00:18:10] Speaker 02:
Anything further, counsel?

[00:18:11] Speaker 03:
No, your honor.

[00:18:12] Speaker 02:
All right, thank you.

[00:18:17] Speaker 02:
Let's put a couple of minutes on the clock.

[00:18:18] Speaker 00:
Thank you, Your Honor.

[00:18:19] Speaker 00:
Just three quick things.

[00:18:20] Speaker 00:
The passage from ER 215.

[00:18:23] Speaker 00:
Just wanted to make sure we have the full passage from line 12.

[00:18:28] Speaker 00:
And if any particular count is not your verdict or does not reflect what your vote was in the jury room, then we need to have you call that matter to our attention by count.

[00:18:41] Speaker 00:
So even without that phrase, the phrase that I just emphasized, whether it reflects your vote in the jury room, I think it's still ambiguous about what the verdict is.

[00:18:50] Speaker 00:
And the jury note reflects that.

[00:18:52] Speaker 00:
The second thing is that I don't think, sorry.

[00:18:54] Speaker 02:
Explain to me again how that helps you.

[00:18:56] Speaker 00:
Oh, it's just what the judge is saying is, tell us if this does not reflect your vote in the jury room.

[00:19:02] Speaker 00:
But their vote in the jury room was what they agreed to before they signed the verdict form.

[00:19:06] Speaker 00:
So what the judge is asking is, does what was read reflect what you voted for or agreed to before you signed the verdict forms?

[00:19:14] Speaker 00:
That's going to make a juror feel more locked in.

[00:19:17] Speaker 04:
Your argument is, oh, they might have had remorse on the spot and say, gee, I'd like to change my vote, but that's not what the judge let me do.

[00:19:27] Speaker 00:
on the spot, they were rethinking at least one verdict back in the jury room.

[00:19:33] Speaker 04:
But I mean, I take your position of the law.

[00:19:35] Speaker 04:
I think you're right.

[00:19:36] Speaker 04:
If the juror on the spot no longer wants to convict, he can say, no, that's not my verdict now.

[00:19:47] Speaker 04:
Isn't that really the guts of your position, is that they would feel intimidated

[00:19:54] Speaker 04:
not to speak up and say, no, that's no longer my verdict.

[00:19:58] Speaker 00:
It's not just intimidation, Your Honor.

[00:19:59] Speaker 00:
It's the fact that they would be led to believe that their verdict is what they agreed to back in the jury room, as opposed to what their considered view is now that they're being pulled.

[00:20:10] Speaker 04:
Now, you're saying that they are fully entitled to do that, and they would have been misled into thinking that they couldn't.

[00:20:17] Speaker 04:
That's right, Your Honor.

[00:20:18] Speaker 00:
And then two other points.

[00:20:20] Speaker 00:
The second point is, I don't think you need to decide whether the judge did anything with the note.

[00:20:25] Speaker 00:
We know that the question was propounded, it was filed, and that no proceeding was held on it.

[00:20:31] Speaker 04:
Do you think it's clearly established that failing to respond to a jury note is a violation?

[00:20:40] Speaker 00:
I don't know about that, Your Honor.

[00:20:42] Speaker 04:
If he just looked at it and put it in his pocket,

[00:20:46] Speaker 00:
Yes.

[00:20:47] Speaker 04:
Is it clearly established that that violates the Constitution?

[00:20:50] Speaker 00:
Yes.

[00:20:52] Speaker 00:
Yes, because on the record, we know that the stage is triggered by the asking of the question.

[00:21:00] Speaker 00:
The question is asked.

[00:21:02] Speaker 00:
We are now at a critical stage.

[00:21:04] Speaker 00:
We're not saying it's a per se rule.

[00:21:06] Speaker 00:
We're saying depending on the nature of the question, the nature of the instructions, the nature of the charges.

[00:21:11] Speaker 00:
right those things it's their point hit in the state's point heading we we look at what was asked and how that question was handled we know that we know what was asked and we know how it was handled as it was ignored either because it was of an administrative oversight or because the judge did something stranger but we know it was ignored in the council was there are times when the jury sends out a note the court directs the deputy clerk to call council but you know l.a.

[00:21:38] Speaker 02:
county's huge councils out in

[00:21:41] Speaker 02:
you know, out in the San Fernando Valley and the 101-45 traffic was such that by the time counsel comes into court, the jury says, never mind, that's happened.

[00:21:54] Speaker 02:
That's not uncommon, right?

[00:21:57] Speaker 02:
So it's not that every time a jury note goes out that there has to be an answer.

[00:22:01] Speaker 02:
It takes time to get counsel back into court.

[00:22:03] Speaker 02:
Sometimes it doesn't get answered because it becomes moot.

[00:22:06] Speaker 02:
I don't know whether this is that sort of situation or not.

[00:22:10] Speaker 02:
It would be better if the record had reflected that.

[00:22:13] Speaker 00:
Two things.

[00:22:13] Speaker 00:
One is that a record had to have been made, that that was the outcome.

[00:22:17] Speaker 00:
There had to be a record of proceedings in open court on the jury's question, even if it wound up being moot.

[00:22:23] Speaker 00:
I would say that's what 1138 California Appeal Code 1138 requires on its face.

[00:22:27] Speaker 00:
And then second, we have a record of a judge who's trying to get stuff on the record.

[00:22:33] Speaker 00:
So it just doesn't track that that would happen.

[00:22:36] Speaker 00:
He'd get counsel on the phone.

[00:22:38] Speaker 00:
We have portions of the record where he's on the phone with counsel, or he's just been on the phone with counsel.

[00:22:42] Speaker 00:
Counsel's on their way.

[00:22:43] Speaker 00:
They're coming.

[00:22:43] Speaker 00:
The jury's in the room with counsel not present.

[00:22:47] Speaker 00:
And he's letting them know that counsel's on the way.

[00:22:49] Speaker 00:
Counsel's on the way.

[00:22:51] Speaker 00:
Sorry, that's not with the jury in the room.

[00:22:53] Speaker 00:
That's with the defendants in the room.

[00:22:55] Speaker 00:
So we have your argument and then just just to say with the third my left third point is that you know to the extent that there's that we do have Disputed facts, then I think we need to remand for our hearings.

[00:23:07] Speaker 00:
That's it.

[00:23:08] Speaker 02:
Thank you very much council argument this morning matters submitted